Filed: Jun. 26, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-26-2008 Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-3230 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 977. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/977 This decision is brought to you for free and open access by the Opinions of the U
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-26-2008 Liu v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-3230 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 977. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/977 This decision is brought to you for free and open access by the Opinions of the Un..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-26-2008
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3230
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Liu v. Atty Gen USA" (2008). 2008 Decisions. Paper 977.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/977
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3230
SHI HING LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A71 488 197)
Immigration Judge: Honorable Charles Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
Opinion filed June 26, 2008
OPINION
PER CURIAM
Shi Hing Liu petitions for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his
application for adjustment of status. We will deny the petition for review.
Liu is a native and citizen of China. He entered the United States in 1993 without
a valid entry document. The Immigration and Naturalization Service issued an order to
show cause charging that Liu was subject to deportation on this basis. Liu conceded he
was deportable and applied for asylum and withholding of deportation.
At his hearing in 1993, Liu testified that his wife became pregnant, and that
government officials required that she have an abortion. He stated that his wife ran away,
but officials found her and forced her to have an abortion in January 1993. Liu also
stated in his asylum application that his fiancee was forced to have an abortion.1 The
Immigration Judge noted that there were inconsistencies in Liu’s testimony, but stated
that they did not go to the ultimate issue of whether he left China because he objected to
the family planning policy. The Immigration Judge found Liu credible, but held that Liu
did not qualify for asylum under the existing law. The Board of Immigration Appeals
(“BIA”) dismissed Liu’s appeal in 1993. Liu was granted voluntary departure, but he did
not leave the United States.
In 1999, Liu filed a motion to reopen his proceedings to apply for relief under the
Convention Against Torture. He also argued that he was now eligible for asylum based
1
Liu’s “wife” and “fiancee” refer to the same person. Liu testified that he was married
in July 1992, and that his wife had to pay a fine because they married too young. On
cross-examination, Liu stated that they did not have a marriage ceremony, and that they
just agreed to get married. Liu’s asylum application stated that he was single and referred
to his fiancee. The Immigration Judge found that Liu was formally engaged. In later
proceedings, Liu testified that, although he did not have a marriage license, he and his
wife had a banquet in honor of their marriage.
2
on the change in the law that expanded the definition of “refugee” to include persons
fearing persecution based on resistance to coercive family planning policies. In an
affidavit, Liu again asserted that his wife was forced to have an abortion. The BIA
granted the motion to reopen and remanded the matter to the Immigration Judge.
On remand, Liu testified that his wife did not have an abortion. He stated that she
had a miscarriage when she ran away from government officials. Based on Liu’s 1993
testimony and the statement in his affidavit in support of his motion to reopen that his
wife had a forced abortion, the Immigration Judge found Liu not credible and denied
asylum and his other applications for relief from removal.
While Liu’s appeal to the BIA was pending, the BIA granted Liu’s motion for a
remand so that he could apply for an adjustment of status based on a labor certification.
On remand,2 Liu submitted an affidavit stating that he had never told his lawyer in 1993
that his fiancee was forcibly aborted, that he was never told what was written in his
asylum application, that he did not testify in 1993 that his fiancee was forcibly aborted,
and that he did not know that an affidavit was part of the motion to reopen. Liu also
stated that in 2002 he married a woman he had met in New York City. At his hearing,
Liu testified that the law office had made a mistake, and that the 1993 transcript was
probably a “misinterpretation.” A.R. at 104.
2
Although the earlier proceedings were in Arlington, Virginia, venue was changed to
Philadelphia apparently because Liu moved to Pennsylvania.
3
The Immigration Judge (“IJ”) found that Liu had committed fraud by falsely
stating that his wife had been forced to have an abortion. The IJ rejected Liu’s argument
that there was a defect in the transcript, finding no evidence of an objection to the
translation. To the extent Liu suggested that his counsel was negligent, the IJ noted that
Liu had not complied with the requirements for pursuing an ineffective assistance of
counsel claim, and that it would be the decision of his current counsel as to whether a
motion to withdraw would be appropriate.3 Because he committed fraud, the IJ found Liu
inadmissible and thus ineligible for adjustment of status. On appeal, the BIA agreed that
Liu was ineligible for adjustment of status because he committed fraud, and also
concluded that Liu did not merit such relief as a matter of discretion.4 This petition for
review followed.
We must first address our jurisdiction over the petition for review. The
Government argues that we lack jurisdiction to review the BIA’s discretionary decision
denying Liu’s application for adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)
(providing no court has jurisdiction to review any judgment regarding the granting of
relief under § 1255). The Government recognizes that we retain jurisdiction over the
legal question of an alien’s eligibility for adjustment of status, see Pinho v. Gonzales, 432
3
Liu was represented by different lawyers at the successor firm to the firm that
represented him in 1993.
4
The BIA noted that Liu did not raise any issues regarding his claim for asylum, and
stated that, if he had, it would deny any such application in its discretion given its
affirmance of the IJ’s finding of fraud.
4
F.3d 193, 204 (3d Cir. 2005), but contends that we lack jurisdiction here because, in
addition to finding Liu ineligible for adjustment of status, the BIA denied relief as a
matter of discretion. We disagree. Although we may lack jurisdiction where the BIA
denies relief as a matter of discretion on grounds independent of the finding of
ineligibility, the BIA did not note any separate grounds for denying Liu’s application as a
matter of discretion. See Ling Yang v. Mukasey,
514 F.3d 278, 279-80 (2d Cir. 2008)
(stating court retains jurisdiction to review a denial of adjustment of status where a
discretionary determination is based on the same grounds as the eligibility determination).
We agree with the Government, however, that the BIA’s decision that Liu is
ineligible for an adjustment of status because he committed fraud is supported by
substantial evidence. An alien must be admissible to the United States to be eligible to
adjust his status. 8 U.S.C. § 1255(a). Any alien who “by fraud or willfully
misrepresenting a material fact” has sought to obtain a benefit under the immigration law
is inadmissible. Id. § 1182(a)(6)(C). The record reflects that Liu represented at his 1993
hearing, in his asylum application, and in his affidavit in support of his motion to reopen
that his wife was forced to have an abortion. At his 2001 hearing, Liu stated for the first
time that his wife had a miscarriage, not an abortion.
Liu does not dispute the materiality of his statements, nor could he, as his asylum
claim was based on China’s population control policies. Liu does argue that his false
statements were not willful, noting that there is no evidence showing that he had actual
5
knowledge of the contents of the 1993 asylum application or the motion to reopen. Liu
states that, at the 2001 hearing on his motion to reopen, he testified that he did not prepare
a written statement related to that motion. The Immigration Judge in those proceedings,
however, found Liu not credible, stating that he specifically testified at his 1993 hearing
that his wife had a forced abortion. Liu did not pursue an appeal of this finding to the
BIA. Although Liu further argues that he never told his lawyers that his wife had an
abortion, and that his lawyers did not review the documents they prepared with him, both
the IJ and the BIA correctly noted in his adjustment of status proceedings that, to the
extent Liu blamed his attorneys for the misrepresentations, he had not pursued an
ineffective assistance of counsel claim.5
The record reflects that Liu testified at his hearing in 1993 that his wife ran away,
“[b]ut finally, you know, they took my wife to do the abortion.” A.R. at 314. Liu further
testified that officials took his wife to do the abortion in January 1993, and that he
became aware that his wife had an abortion after he wrote her a letter and his “wife told
[him] all about this.” A.R. at 314. Liu’s 1993 testimony constitutes substantial evidence
supporting the finding that he willfully misrepresented a material fact. See Mwongera v.
I.N.S., 187 F.3d 323, 330 (3d Cir. 1999) (stating that willfulness is satisfied by finding
5
Liu argues that it was unreasonable to expect him to pursue such a claim where he
was still represented by the same law firm. The IJ, however, suggested in its decision that
counsel consider withdrawing from his case. Liu did retain new counsel after filing his
appeal to the BIA, but he did not pursue an ineffective assistance of counsel claim.
6
that the misrepresentation was deliberate and voluntary). Liu has not pointed to evidence
showing that a reasonable factfinder would be compelled to find that he did not willfully
misrepresent the basis of his asylum claim. See id.
Accordingly, we will deny the petition for review.
7
